[Hon’ble B.S. Verma, J. (Oral)]

By means of this petition the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 25-07-20 12, passed by Second Additional District Judge, Haridwar, in SCC Revision No. 16 of 2010 Vishwakarma Pracheen Samti Vs. Girver @ Ghanshyam, whereby the revision was allowed and dismissed the SCC Suit of the plaintiff/respondent.

2. Briefly stated the facts of the case giving rise to this writ petition, are that the petitioner is tenant of a residential accommodation at Satighat Vishwakarma Mandir Kankhal Haridwar at the rate of Rs. 200/- per month. The plaintiff/respondent filed a suit against the petitioner/defendant for eviction and recovery of arrears of rent before the Judge SCC/Civil Judge (S.D.), Haridwar which was numbered as SCC Suit No. 16 of 2002. The suit has been filed with the assertion that the defendant/petitioner did not pay the rent and water tax and the house tax. The plaintiff sent registered notice U/S 106 of Transfer of Property Act, dated 28-1-2002 through its Advocate terminating the tenancy of the defendant. Reply of notice was sent by the defendant. As in the notice dated 28-2-2002, description of property was not mentioned, therefore subsequent registered notice dated 7-3-2002 was also sent to the defendant terminating his tenancy, but the defendant deliberately refused the acceptance of the notice and the same was returned back.

3. The suit was contested by the petitioner-tenant and assertion made in the plaint have been denied. The service of subsequent notice dated 7-3-2002 was denied. It was further alleged in the W.S. that the plaintiff-institution is not a religious institution and its object is not religious and provision of U.P. Act No.13 of 1972 applies to the disputed property. The defendant/tenant further alleged that the rent of disputed property is not Rs. 200/- per month and it is Rs. 100/- per month. It was also alleged that there is no default on the part of tenant in payment of rent and the rent upto the month of January 2002, has been paid.

4. On the basis of pleadings of parties learned Judge SCC has framed as many as seven issues in the suit. Issue No.5 was framed to the effect whether as per pleading in W.S. the notices dated 28-1-2002 and 7.3.2002 sent to defendant are illegal and invalid.

5. Both the parties adduced evidence before the Judge SCC in support of their cases and the learned Judge SCC after considering the evidence of parties, dismissed the suit of the plaintiff, vide judgment and decree dated 15-5-2010.

6. Feeling aggrieved the plaintiff/landlord preferred SCC Revision No. 16 of 2010, and the IInd Addl. District Judge, Haridwar vide impugned judgment and decree dated 25-7-20 12 partly allowed the revision and decreed the suit for eviction and also directed that the plaintiff/respondent shall be entitled to get mesne profit and damages for occupation of property in dispute, from the defendant/petitioner @ Rs. 10/- per day from 21.4.2002 till the date of getting possession of disputed property. It was also directed that the amount deposited by defendant after filing the suit in the form of rent, shall be deducted from the amount of mesne profit and damages for occupation of the disputed property.

7. The SCC revision was allowed. The revisional court has allowed the revision on the ground that although the plaintiff has failed to prove that there was arrears of rent against the defendant but it has been proved that the plaintiff has been successful to prove that the tenancy of the defendant has been terminated by giving notice U/S 106 of Transfer of Property Act. The plaintiff had sent registered notice dated 28-1-2002, but in the said notice by mistake description of property was not mentioned and due to this reason subsequent registered notice dated 7.3.2002 was sent to the defendant on the correct address and waived the earlier notice dated 28-1-2002, but the defendant deliberately avoided the serv